The DUI With No Driving - Part 1



DUI stands for driving under the influence. However, years ago Arizona, like many other states, changed its DUI laws to cover situations where the person was not actually driving. Instead, to be guilty of DUI, a person just needed to be "controlling" a vehicle. The classic example is the vehicle stopped in the middle of the road and the driver is passed out drunk. That is an obvious case of someone controlling a car without driving.

However, there are many situations, where it is not so obvious that a person is "actually controlling" a car. There has been a growing debate regarding as to what it means to be "controlling" a car in a DUI case. For example, people can legally use their car as a shelter after they have been drinking alcohol.  Someone who sleeps in their properly parked car after getting drunk is not "controlling" their car for purposes of Arizona DUI law. However, if they put the key in the ignition to turn on the air condition, does that action create a DUI? The Arizona Supreme Court Case recently attempted to end the debate in the case of State v. Zaragoza.

Zaragoza was convicted on an Aggravated DUI charge after he was found at an apartment complex:

•    Sitting in his car
•    The engine was off
•    His hand on the wheel, and
•    The keys in the ignition,
•    Alcohol in his system

Zaragoza claimed that he had no intention to drive, but only to sleep in his car. He claims the reason the keys were in the ignition was to roll down the window, and turn on the radio. 

He appealed his conviction based on the argument that the jury was provided inappropriate instructions regarding the law of actual physical control of vehicle.

The Arizona DUI statute does not define what “actual physical control” of a vehicle is, and there have been varying types of jury instructions on the meaning of this phrase through-out the courts. 

The Arizona Supreme Court took this case, and attempted to clarify the law’s definition. They stated that actual physical control has nothing to do with the intent of the driver to move or use the vehicle, but the actual and imminent danger to the him/her self or others at the time alleged to have control. This means that all facts must be looked at together in order to appropriately determine if there was an actual or imminent danger.

The Court also held that in this case, the instructions did not mislead the jury, but that they may have misstated the law. Because of the variations in instruction, and the result of Zaragoza's case, the Arizona Supreme Court decided to provide a new jury instruction for future cases.

The new instruction will be published in Part II of the blog post.

If you need assistance or additional information about an Arizona DUI case, please contact the Koplow Law Firm Online or by phone at (602) 494-3444.

Lawrence Koplow


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Comments (5) Read through and enter the discussion with the form at the end
Joe - July 21, 2010 7:31 PM

Sometimes, the letter of the law just gets so frustratingly stupid. Wouldn't EVERYONE rather a drunk person pass out in their car than have them driving around?

Bill Bly - July 25, 2010 4:26 PM

I think the shelter doctrine is an excellent application of the law. Unfortunately, not all state recognize the shelter doctrine. In Maine, you are on the side of the road w/the car running and you're passed out, you're DUI.

David Bauernfeind - July 25, 2010 8:05 PM


I am a DUI attorney in North Carolina and are laws are worded similarly re: physical control of the vehicle. In my experience, however, many juries are willing to overlook such broadly written statutes and find the defendant -- who was merely sleeping behind the wheel -- innocent. Has that been your experience in California? Any additional advice in fighting such crazy charges?

Fort Lauderdale DUI Attorney - July 26, 2010 2:28 PM

Yes, I know it's hard for people to believe but you can indeed be charged while sleeping. You can also get charged for riding a bike drunk as well.

Ma Drunk Driving Defense .com - August 9, 2010 1:02 PM

Yes it's true, you can be charged while sleeping as absurd as it sounds, that's the truth. Even though that's the best scenario, safest for those around you, it's still a DUI!

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